On Monday, the D.C. Circuit denied rehearing en banc in the net neutrality case because the FCC has announced its intentions to go in a different direction. (As Judge Kavanugh notes in his dissent, the order under review is still in effect, and thus the conflict is not moot). Accompanying the denial of rehearing en banc is a concurral from Judge Srinivasan and dissentals from Judges Kavanaugh and Brown.

Judge Kavanaugh finds that under the “Major Rule” doctrine (a much better framing than the “Major Question” doctrine), the Net Neutrality rule is not afforded Chevron deference. (I advance a very similar framework in my HLR piece, Gridlock). Judge Kavanaugh also contends that the rule violates the freedom of speech.

In this post, I want to focus on an aspect of Judge Brown’s dissental that parallels a theme I advanced in my new forthcoming article in the Illinois Law Review, Presidential Maladministration. I introduce the concept of “presidential intrusion.” That is, where there is evidence that the President unduly interfered with the rulemaking process of an independent agency, the presumption for Chevron deference is lessened. The analysis, which starts at p. 69, uses President Obama’s nudging of FCC Chairman Tom Wheeler, and intrusion into the open internet rulemaking, as the canonical example:

Judicial deference for the decisions of an independent agency is heightened precisely because of its insulation from the political process. The pivotal structural protection—the President cannot remove the commissioners—provides courts with the confidence that the rules the commission reaches are not merely the dictates of the White House. Presidential intrusion frustrates those norms. Even if Wheeler was not influenced by the coordinated barrage of pressure, the appearance of impropriety is palpable. Moving far away from the norms of the Bush and Clinton administration, the Obama administration has set a new precedent for the relationship between the executive branch and independent commissioners. If evidence of this form of maladministration grows, courts should revisit their willingness to defer to changed positions by administrative agencies, and demand reasoned decision making beyond stating that “circumstances changed.”

Part IV of Judge Brown’s dissental, titled “Presidential Interference, tracks a very similar argument:

Why, on the verge of announcing a new Open Internet Order in 2014 that both implemented “net neutrality” principles and preserved broadband Internet access as an “information service,” would the FCC instead reclassify broadband Internet access as a public utility? Simple. President Obama pressured the FCC to do it. This Court once held “an agency may not repudiate precedent simply to conform with a shifting political mood.” Nat’l Black Media Coal. v. FCC, 775 F.2d 342, 356 n.17 (D.C. Cir. 1985). Alas, here we see the exception that kills the rule.

…

The President’s conduct—and the involvement of White House staff more generally—raise questions about the form and substance of executive Power. Unfortunately, none of these questions were addressed by the Court. Given the salience of these questions to our Constitution’s separation of powers, this Court owed the American people a legal analysis, not silent obedience.

Judge Brown also cites Justice Kagan’s famous article, Presidential Adminsitration, which my piece, Presidential Maladministration directly responds to:

But if the means by which the President seeks to shape the agency’s deliberations transgress legal procedures designed to ensure public accountability—like notice-and-comment requirements and rules regarding ex parte communications—he undermines the accountability rationale for confining executive Power to the President. Cf. Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2332 (2001) (characterizing “the degree to which the public can understand the sources and levers of bureaucratic action” as a “fundamental precondition of accountability in administration”). Acting with concern for public accountability seems especially salient when the President “and his White House staff” seek to exert influence over the direction of an ostensibly-independent agency. Cf. Costle, 657 F.2d at 405–06 (“In the particular case of EPA, Presidential authority is clear since it has never been considered an ‘independent agency,’ but always part of the Executive Branch.”). Perchance something else explains the White House’s conduct here than attempting to confine the exercise of executive Power to the President.

Rather than fitting this aspect of presidential intrusion into the Chevron framework, Judge Brown contends that President Obama traversed the line between faithfully executing the laws, and making the laws:

Nevertheless, the President sought to change this law not by petitioning Congress, but by influencing the FCC’s deliberations over how to enforce existing law. The President’s conduct collapsed the distinction between his constitutional authority to seek changes in the law from the legislature, and his constitutional obligation to faithfully execute the law passed by Congress when interacting with the agency charged with executing the law.

A fascinating opinion that warrants a careful study.

On a similar wavelength, Judge Kavanaugh looks at the President’s intervention through the lens of the major rule doctrine:

Indeed, even President Obama publicly weighed in on the net neutrality issue, an unusual presidential action when an independent agency is considering a proposed rule. See Statement on Internet Neutrality, 2014 DAILY COMP. PRES. DOC. 841 (Nov. 10, 2014). The President’s intervention only underscores the enormous significance of the net neutrality issue.

I look forward to working both of these opinions into my article.